United States v. Sanford

United States District Court, N.D. Florida, Gainesville Division

February 20, 2018

UNITED STATES OF AMERICA,v.STEVEN LANG SANFORD, Petitioner.

ORDER ADOPTING REPORT AND RECOMMENDATION

This
cause comes on for consideration upon the Magistrate
Judge's Report and Recommendation in each of 1:94cr1044
(ECF No. 273 in that case) and 1:94cr1050 (ECF No. 102 in
that case.)[1] The parties have been furnished a copy of
the Report and Recommendation in each case and have been
afforded an opportunity to file objections pursuant to Title
28, United States Code, Section 636(b)(1). Petitioner has
filed objections at ECF No. 276 in 1:94cr1004 and ECF No. 105
in 1:94cr1050. I have made a de novo review based on those
objections. Having considered the Reports and
Recommendations, and the timely filed objections, I have
determined that the Reports and Recommendations should be
adopted.

In his
objections, petitioner argues that the sentencing transcript
is not clear as to whether petitioner was sentenced under the
residual clause of 18 U.S.C. § 924(e). This Court
disagrees and finds the record is clear that the residual
clause was not implicated. In addition to the Magistrate
Judge's reasoning, the Court also notes that the
sentencing judge stated that he overruled the defense
counsel's objection “for the reasons specified by
the probation officer in their assessment, not only of the
facts, but of the law and the guidelines comments.”
1:94cr1044, ECF No. 267 ex. 1 at 25. The two paragraphs of
the Presentence Investigation Report dealing with the Armed
Career Criminal Act are set out below:

193. As to Paragraph 61, counsel for the defendant states
that the defendant's total offense level has been
improperly enhanced pursuant to 18 U .S.C. § 924(e).
Counsel argues that in order to qualify for enhancement, the
defendant must have three previous convictions for a
"violent felony" which is defined in 18 U .S.C.
§ 924(e)(2)(B)(ii) to include .... burglary .... "
Although the defendant in the instant case has numerous prior
convictions for burglary, he does not have three previous
convictions for burglary of a dwelling. It is burglary of a
dwelling which should appropriately qualify a defendant for
enhancement under 18 U.S.C. § 924(e) and if the
defendant does not have the prerequisite three previous
convictions for burglary of a dwelling, he should not be
subject to enhancement.

194. The definition of "violent felony" in 18
U.S.C. § 924(e)(2) is not identical to the definition of
"crime of violence" used in U.S.S.G. § 4Bl.1
(Career Offender). See U.S.S.G. § 4B1.4, comment (n.l).
In a decision handed down in 1990, the United States Supreme
Court rejected the view that Congress intended to include
only a special subclass of burglaries and held that “a
person bas been convicted of burglary for purposes of a
§ 924(e) enhancement, if he is convicted of any crime,
regardless of its exact definition or label, having the basic
elements of unlawful or unprivileged entry into, or remaining
in, a building or structure, with intent to commit a
crime.” United States v. Taylor, 495 U.S. 575.
Therefore, the defendant has the requisite prior convictions
for burglary, and is subject to the enhancement under 18
U.S.C. § 924(e).

ECF No. 262 at 47. The same language is used in 1:94cr1050.

The
probation officer relied exclusively on the Taylor
opinion and did not mention the residual clause.
Taylor itself made clear that the residual clause
was not involved in that case:

Petitioner essentially asserts that Congress meant to include
as predicate offenses only a subclass of burglaries whose
elements include “conduct that presents a serious risk
of physical injury to another, ” over and above the
risk inherent in ordinary burglaries. But if this were
Congress' intent, there would have been no reason to add
the word “burglary” to § 924(e)(2)(B)(ii),
since that provision already includes any crime that
“involves conduct that presents a serious potential
risk of physical injury to another.”

Taylor v. United States, 495 U.S. 575, 597, 110
S.Ct. 2143, 2157, 109 L.Ed.2d 607 (1990). Because the
sentencing judge stated that he was relying on the probation
officer's opinion, and that opinion only discussed
Taylor and the enumeration clause, the record is
clear that the sentencing judge did not apply the residual
clause in sentencing petitioner. Thus, Johnson does
not apply to this case, and the Magistrate Judge correctly
recommends that petitioner is barred from filing a successive
petition under § 2255(h).

Accordingly,
it is hereby

ORDERED
AND ADJUDGED:

1. The Magistrate Judge's Reports and Recommendations,
ECF No. 273 in 1:94cr1044 and ECF No. 102 in 1:94cr1050, are
adopted and incorporated by reference in this order. A copy
of this order should be filed in both 1:94cr1044 and
1:94cr1050.

2. The Clerk is directed to enter the following judgment:
“Petitioner's Petitions under 28 U.S.C. §
2255, ECF No. 261 in 1:94cr1044 and ECF No. 90 in 1:94cr1050,
are dismissed for lack of jurisdiction. A certificate of
appealability is denied in both cases.” The Clerk is
directed to close the files in both the criminal and both the
civil cases listed above.

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;DONE
...

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